If only the authors had a better grasp of conservatism, they might have been more informative about Justice Scalia’s influence on our law and politics.
Adam Mossoff says it is one of Lockean property theory’s “strengths” that “it recognizes that IP rights are fundamentally the same as all property rights in all types of assets.” I am not so sure that counts as a strength. Nor do I think Locke’s theory claims to recognize this. Indeed, understanding why Locke’s argument actually does not support IP rights in the same way as it supports rights to physical property will help to show why it would bode poorly for a natural rights account of property if it found no differences of significance between rights to tangible items and rights to inventions, expressive works, or other products of the mind.
Professor Mossoff is undoubtedly right about Locke’s enthusiasm for labor. The passages he quotes illustrate Locke’s deeply held conviction that human effort generates immeasurable value and promotes the flourishing of individuals and communities. Labor transforms the raw resources found in nature into things with still greater usefulness. Labor allows us to obtain the necessities and conveniences of life and to have them in ever greater abundance. Surely Locke would also agree, as Mossoff suggests, that intellectual labor can be as productive of such value as labor of any other kind.
But to get from such “moral approval” of intellectual labor to moral approval of intellectual property rights would require another step or two. The question isn’t whether those who innovate and create are worthy of commendation, but whether they are entitled to an exclusive right in what they have produced—with the upshot that anyone else who endeavors to enjoy the goods they have created without permission can be faulted for acting immorally, for doing them wrong. How does one get from the claim that labor is a worthy thing to moral obligations on the part of others?
Reading Mossoff’s essay, one gets the sense that this missing step might be the proposition that those who generate value are entitled to due reward so that they may fully “enjoy the fruits” of their labor. Throughout modern history, many have seemed attracted to this “if value, then right” sort of inference (to use Rochelle Dreyfuss’s memorable label).
As I have argued elsewhere, however, Locke should not be counted among them. His argument from labor to property right follows a different course. Like the natural law theorists who preceded him, Locke begins from the premise that in a pre–civil society state of nature, with neither laws nor social conventions of any other sort, the earth and its natural resources are owned by everyone in common. Locke’s project in Chapter 5 of the Second Treatise of Government is to show how individuals could gain exclusive rights to things that start as common property, how one can come to have rightful dominion over something that initially belongs to all equally.
Two of Locke’s natural law predecessors—Hugo Grotius and Samuel von Pufendorf—essentially thought that private ownership could come to be justified in such circumstances through consent. If we who own the commons all agree to private appropriation of its pieces, then who among us can complain? The problem with this view, as others were quick to point out, is that perhaps not everyone will (or did) agree to fencing off the commons. And if consent isn’t unanimous then perhaps the hold-outs do have grounds to complain.
Locke’s argument in the Second Treatise seeks to show how private ownership may be justified on the basis of something other than consent. His first move is to establish that in a state of nature one is generally permitted to make use of commonly owned natural resources, and even consume them, because such labor 1) is essential to human existence and 2) does not necessarily make others worse off. We have already seen Locke’s commitment to the first claim: using natural resources, or engaging in productive labor with them, supports human flourishing by making available life’s necessities and conveniences. Locke’s commitment to the second claim comes from his beliefs that, initially, the earth contains enough good resources for all to use and that, later on, individual labor using private property generates enough value to leave everyone better off. Sometimes that second claim is referred to as a “proviso” on appropriation: private ownership in the state of nature is justified only if the laborer leaves “enough, and as good” for everyone else.
Then Locke makes his second move, observing that interference with somebody else’s labor harms that person. Thus it is not only permissible for someone to labor using resources that begin in the commons, it is affirmatively wrongful to hinder such labor or to “meddle with what was already improved by another’s Labour” (§ 34). The interferer, Locke claims, generally has no legitimate claim to the resources being put to good use by another person when there are enough and as good resources remaining for the interferer’s purposes.
This reading of Locke, which ties the scope of property rights to wrongful interferences with labor, finds support in an additional piece of evidence from Chapter 5. According to Locke, justified ownership—at least before the advent of laws and other social conventions changes things—is circumscribed by the owner’s decisions to make productive use of his property:
The same Law of Nature, that does by this means give us Property, does also bound that Property too. God has given us all things richly, 1 Tim. vi. 17. is the Voice of Reason confirmed by Inspiration. But how far has he given it us? To enjoy. As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a Property in (§ 31).
Consequently, the interference-centered reading of Locke comes with a built-in limit on the scope of property rights: It would be entirely proper to use others’ property, even if labor had previously gone into it, if that property is now going to waste unused. As Locke says, “if either the Grass of his Inclosure rotted on the Ground, or the Fruit of his planting perished without gathering . . . this part of the Earth, notwithstanding his Inclosure, was still to be looked on as Waste, and might be the Possession of any other” (§ 38). Put another way, the laborer gains “no Right, farther than his Use” requires for the items he acquires or makes (§ 37), and so others are permitted to make their own use of those items when that does not interfere with the owner’s labor.
Note that property rights like this are narrower than those that American property law recognizes. In our legal system, even harmless unauthorized use of private property is generally unlawful, particularly for real property.
So what does this understanding of Locke’s theory entail for intellectual property? As Mossoff observes, critics of extensive IP rights often worry about the waste or “deadweight loss” that comes from giving to a few persons exclusive rights to goods that can be used by many, without conflict.
Locke, it seems, might have some sympathy for this worry. And not because it is any “premise” of his “that property rights are justified as a solution to disputes over scarce goods” only (to borrow Mossoff’s characterization of IP critics’ argument). Quite to the contrary, it follows from Locke’s “moral approval” of labor—of people making productive use of goods so as to obtain the necessities and conveniences of life—that it is a happy thing when many can benefit from something valuable without having to deny that thing to anyone else.
For physical property, such as the land and produce that supply Locke’s central examples, simultaneous non-interfering use is generally not possible. If you pick an apple and eat it, I do not get that apple. If I plant wheat on a tract of land, you cannot build a house there without causing trouble. Conflict arising from simultaneous uses of the same tangible goods is awfully hard to avoid.
That is not true for the non-rivalrous goods that are copyright and patent laws’ concern. Accordingly, there would not be natural IP rights on this account because productive use does not require exclusiveness, and may even be hampered by it.
To hold otherwise, we would need to count unauthorized use of another person’s idea or creative work as some sort of interference. And with what, exactly, could that be interference? The prime contender, perhaps, is interference with that person’s ability to sell access to the good. After all, one might argue, licensing might be a productive use of the good in Locke’s sense of the term.
A full response to this question would take us far afield, but it may suffice here to raise some doubts about whether licensing can rightly qualify as the sort of labor that must not be interfered with.
In many situations, we assume strangers are not obligated to accede to a property owner’s demands every time they derive some benefit from the property or its owner’s actions. I might take delight in my neighbor’s handsome gardens or the pleasant smells drifting over from the barbecue pit next door. But I would be startled if a neighbor demanded payment from me on the theory that I was unjustifiedly interfering with his ability to license access to these intangible goods.
There are many positive externalities in this world, and we often do not bat an eye when those who voluntarily accept them fail to furnish compensation to those who produce them. Indeed, it would seriously cramp individual liberty if we constantly had to adjust ledgers and settle accounts every time we gained a benefit from one another. (This is also part of what makes the “if value, then right” inference so untenable.) There may be some instances of free-riding that raise justified moral objections, but there seem to be many others that do not. Absent some principled basis for distinguishing between externalities the laborer has a right to demand a license fee for and those he does not, we merely beg the question if we assume that unauthorized intellectual property use qualifies as wrongful interference with labor.
Now what of Mossoff’s claim that Locke himself “expressly” recognized that copyrights constitute a legitimate kind of property? Does that not cast doubt on my suggestion that Locke’s argument does not support natural IP rights? I think not, for the evidence Mossoff gives here proves weak when read in context.
Take Locke’s proposal of a copyright term of 50 or 70 years. Locke meant this as a scaling back of copyright duration, not a lengthening. One of Locke’s main complaints about the Licensing Act of 1662 is that it gave the Stationers’ Company “a monopoly of all the classic authors and scholars,” including Locke’s much-admired Cicero. And so “if another Act for printing should be made,” Locke wondered, would it not be “reasonable that nobody should have any peculiar right in any book which has been in print fifty years”? Such works belong in the public domain instead, Locke argued, because “liberty to anyone of printing them is certainly the way to have them the cheaper and the better.”
Neither should anything be read into Locke’s apparent suggestion that a replacement Act “secure the author’s property in his copy.” Locke did propose some language for a bill drafted by his friends Edward Clarke and John Freke, and this language indeed would have granted authors and their transferees the exclusive right to print their books. But Locke made this proposal only in response to a letter from Clarke and Freke reporting strong opposition to their bill from the Stationers’ Company and others who “all agree[d] to say that it [was] wanting as to the Securing of property.”. Locke, then, was merely trying to help his friends overcome political opposition to their bill. Ultimately, they rejected his suggested compromise, and the bill was not enacted.
It strikes me as unlikely, then, that if asked Locke would have affirmed natural rights of copyright or patent. He was simply too committed to the productive use of things—whether soon-to-perish produce or Ciceronian wisdom. In fact, Locke may even have responded to an inquiry about IP rights with a quote from Cicero, who penned a passage similar to, but less well known than, Thomas Jefferson’s more famous writings along these lines. In his De Officiis (which Locke knew well), Cicero quotes the following adage:
“Who kindly shows a wanderer his way,
Lights, as it were, a torch from his own torch, —
In kindling others’ light, no less he shines.”
Then Cicero adds:
This one instance suffices to illustrate the rule, that whatever one can give without suffering detriment should be given even to an entire stranger. Thus among common obligations we may reckon, to prohibit no one from drinking at a stream of running water; to permit any one who wishes to light fire from fire; to give faithful advice to one who is in doubt, — which things are useful to the receiver, and do no harm to the giver (bk. I, § 16).
We already know Locke agrees about the water. As Locke says, “No Body could think himself injur’d by the drinking of another Man, though he took a good Draught, who had a whole River of the same Water left him to quench his thirst” because “he that leaves as much as another can make use of, does as good as take nothing at all” (§ 33). Might Locke also have agreed, then, with Cicero’s remark about freely sharing a lit flame? Might he even have agreed with Jefferson about patents? No one can say for sure, but it seems to me his argument tends in that direction.
It bears emphasis, however, that none of the foregoing shows that the law should not recognize robust IP rights. There may yet be a good utilitarian argument for instituting a system based on such rights. Indeed, I suspect there is (although I am far from sure how strong the resulting rights should be). It may even be that IP rights systematically imposed by law for utilitarian reasons generate moral rights held by IP owners. I suspect that too, and have elsewhere sought to explain how moral rights of this sort might arise.
But the foregoing does show that Locke’s argument for natural property rights does not get us fundamentally equivalent IP rights all on its own. So much the better for Locke’s argument, in my view, if that is indeed the case.
 See John Locke: Political Essays, edited by Mark Goldie (Cambridge University Press, 1997), p. 332.
 Ibid., p. 333.
 Ibid., p. 338.
 Letter from John Freke and Edward Clarke to John Locke (March 14, 1695), in The Correspondence of John Locke, edited by E.S. De Beer (Oxford University Press, 1979), Volume 5, p. 291.